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Family LawThe newsletter of ISBA’s Section on Family Law

August 2010, vol. 54, no. 1

Who is going to pay for college?

College expenses are increasingly being litigated as the need for a college diploma increases. Twenty two of the 30 fastest-growing career fields require some post-secondary education. Section 513 sets forth the factors the court will analyze when determining the allocation of college expenses among the parents. You should ask your client the following questions and start building your case from there.

1. What school is the child attending?

• Private vs. Public?

• In-State vs. Out of State?

• Why are they going there?

2. What are the “educational expenses”?

3. What are the financial resources of the parties?

4. How much can the child pay?

What school is the child attending?

The first fact you will need to ascertain is where the child will be going to school. If the child has applied to several schools and is waiting to hear back to see if they have been accepted, you can still file the petition and list all of the schools. By the time you complete discovery on the parties’ finances, the child should know where she will be attending.

The courts have previously favored the costs of in-state schools over out of-state schools. For example, in 1986, the Supreme Court in In re Support of Pearson, 111 Ill.2d 545, 96 Ill.Dec. 69 (1986), found that private school tuition was an inappropriate benchmark for determining the tuition award, especially when there were less expensive state institutions and where there was no showing that the private institution was superior to the state institution.

However, there is trend away from this distinction and the courts are looking more at why the child is wanting to go to that school. If the child wants to attend a specialized school, you will need to have testimony as to how that school is specialized and different from a less expensive school. In Sussen v. Keller, 382 Ill.App.3d 872, 322 Ill.Dec. 764 (4th Dist. 2008), the child wanted to go to an out of state school for automotive training. The out of state program was 15 months and was going to cost approximately $34,000. The Respondent father was able to show that the in state school was only going to be approximately $17,000 per year for a 21 month program. The Respondent father presented evidence of all of the classes in the two specific programs and compared them showing that they were similar programs. If the Petitioner fails to present evidence as to why the more expensive program is appropriate, then the Respondent only needs to show the costs of an in-state/public school. In re Marriage of Schmidt, 292 Ill.App.3d 229, 226 Ill.Dec. 152 (4th Dist. 1997).

If possible, you may want to have a dean from the school testify regarding the specifics of the particular program the child wishes to follow. Depending upon the program, it would also helpful to have the Dean testify as to the employment placement rate after graduation. See In re Marriage of Spear, 244 Ill.App.3d 626, 184 Ill.Dec. 331 (4th Dist. 1993).

What are the “educational expenses”?

Once you have determined where the school is and why the child wants to attend that school, you must delve into the expenses. In In re Marriage of Dieke, 381 Ill.App.3d 620, 320 Ill.Dec. 484 (4th Dist. 2008), the court defined “college expenses” as tuition, fees, room, board, books, personal expenses, and transportation costs; medical and dental insurance contribution, uninsured medical, dental, vision, orthodontia and other health related expenses not covered by medical and dental insurance and to make reasonable contribution toward living expenses of the children during the summer months. Virtually all colleges and professional institutions have Web sites that have the costs of the different programs. Of course, there are some programs that have extra costs associated with a particular program. You need to determine what, if any, extra costs are associated with that program. For example, the airway science degree at the University of North Dakota requires a flight instruction class. The cost of the flight instruction class was not part of the “tuition.” However, Petitioner successfully argued that the class was needed for him to receive a bachelor degree in airway science. In re Marriage of Dieter, 271 Ill.App.3d 181, 207 Ill.Dec. 848 (1st Dist. 1995).

In re Marriage of Holderrieth, 181 Ill.App.3d 199 (1st Dist.1989), the parties had a settlement agreement providing the father would pay for the “college or professional school” of the child. The program the child was attending at Denver Automotive and Diesel College did not include any courses in English, literature, social studies, math or the fine arts. The court did a lengthy analysis of the definitions of “college” “professional school,” vocational school” and “trade school.” Ultimately, the court held that the automotive school was not a college or professional school. Therefore, under the settlement agreement, father did not have to the pay the expenses. The court further stated that if the parties wanted to include such a school they should have had a boarder term such as “post highschool education” or specifically included “vocational” school. However, two years later in In re Marriage of Oldham, 222 Ill.App.3d 744, 165 Ill.Dec. 206 (1st Dist. 1991), a similar issue was raised. Again, this was a marital separation agreement that provided language regarding education. The settlement agreement provided that father would pay for “all necessary and reasonable expenses incident to an education at the college or university level for each of the aforesaid minor children.” The children were going to DeVry Institute of Technology. Respondent argued that DeVry was not a “college or university” pursuant to the settlement agreement. However, the mother presented evidence from the Dean of academic affairs that DeVry did offer a baccalaureate degree. Moreover, the students were required to take traditional courses such as English, speech and writing. The court in this case, citing to the lengthy definitions of a “college” in Holderrieth found that DeVry was a “college.”

What are the financial resources of the parties?

Even though children do not have an absolute right to college education. In re Marriage of Spear, 244 Ill.App.3d 626, 630, 184 Ill.Dec. 331 (4th Dist. 1993), the courts generally the courts will find since the payor spouse had been paying child support, then the payor can continue to pay at least something to college expenses. The ability to pay is determined based upon the party’s resources at the time of the hearing. A court may award sums of money out of the property and income of the other parent. For example, in Sussen v. Keller, 382 Ill.App.3d 872, 322 Ill.Dec. 764 (4th Dist. 2008), the court did take into consideration that the father was not working, but he had a Harley Davidson motorcycle worth approximately $10,000 and a trust worth $5,000. Father was getting disability of $300 per week. The mother earned approximately $400 per week and $720 per month from boarders. Court ordered him to pay one third of the child’s college expenses which amounted to approximately $6,000 for the 21 month program. The court relied on the fact that he had property that could be used for the college expenses.

There has been a noticeable trend with regards to a new spouse’s income. Prior to 1980, the courts did not look at the new spouse’s income. In Robin v. Robin, 45 Ill.App.3d 365, 371-372, 3 Ill.Dec. 950 (1st Dist. 1977), the court held the current spouse’s income is not considered in a proceeding to modify support because the new spouse has no legal obligation for the support of step children. However, in 1980 a trend started in that the courts started to look at the payor’s new family expenses in determining the amount money available for college. In Greiman v. Friedman, 90 Ill.App.3d. 941 46 Ill.Dec. 355 (1st Dist. 1980), the appellate court found that the trial court abused its discretion in not allowing testimony about the father’s financial obligation to his second family. Also, In re Marriage of Garelick, 168 Ill app3d 321, 119 Ill. Dec. 76 (1st Dist.1988) the appellate court reviewed the non-custodial parent’s current spouse’s income.

In 2000, the courts began also to look at the payee’s new spouse’s income. The court in In re Marriage of Drysch, 314 Ill.App.3d 640, 247 Ill.Dec. 409 (2nd Dist. 2000), did look at the new spouse’s income. In Drysch, the father and his new spouse made approximately $92,000. Mother and her new spouse made approximately $621,000, of which $50,000 was mother’s income. The child was going to Purdue costing $20,000 per year. The court considered that the mother had funds for the expenses since her new husband was supporting her. The court ordered father to pay only 10 percent of the college expenses.

Likewise in 2001, Street v. Street, 325 Ill.App.3d 108, 258 Ill.Dec. 613 (3rd Dist. 2001), the court also recognized that previous cases did not look at the new spouses income, but with Drycsh, the new trend was moving away from Robin and leaning towards reviewing the spouse’s income. The court, therefore, considered that mother had a new spouse that was helping her support herself. Specifically, the court reasoned, “to the extent that the current spouse of the payee has income or assets which are or can be used to contribute to the living expense of the payee, his or her income and assets should be considered by the court in making its determination regarding the amount the payee is able to contribute to the child’s education.” Street, 325 Ill.App. 3d at 114.

In In re Marriage of Cianchetti, 351 Ill.App.3d 832, 286 Ill.Dec. 807 (3rd Dist. 2004), the mother only made $42,000 compared to father’s $75,000. However, the mother’s new spouse earned approximately $140,000 per year. Mother admitted that the majority of her money was spent on the parties’ daughters, buying them clothes and taking them on vacations. Father was ordered to 50% of the children’s schooling.

How much can the child pay?

The courts have found that the children have a duty, when going to an expensive school, to lessen the load on their parents. In In re Marriage of Calisoff, 176 Ill.App.3d 721, 126 Ill.Dec. 183 (1st Dist. 1988), the children were both attending the University of Southern California at the time of the divorce. The daughter received a scholarship and her tuition was going to be $6,500. The son however, did not receive any scholarships or loans, his cost was going to be $20,000 per year. The trial court ordered father to pay all of the college for the children excluding scholarships and loans. The appellate court remanded the case stating that while $6,500 may be equivalent to the annual tuition and expenses at an in-state school, $20,000 is not. The appellate court went on to say that the children themselves have an obligation to lessen their parent’s financial burden in this regard.

On the other hand the courts have said that children should not have to go in debt. In In re Marriage of Korte, 193 Ill.App.3d 243, 140 Ill.Dec. 255 (4th Dist. 1990),the child was going to SIU and after scholarships she had a shortfall of approximately $3,500. Her admittance into the SIU was probationary. She had not applied for loans and she did not intend on working while going to school. Since the tuition was not $20,000 per year like in Calisoff and was only $3,500, of which the father had the ability to pay, the court found that there was no error in not requiring the child to contribute money.

College expense litigation will continue to expand as different kinds of education becomes available to students. The goal should be an education, whatever kind it maybe, that will advance the child so that neither party has to continue supporting the child. ■


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